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Milwaukee Mutual Insur. Co. v. Wessels

OPINION FILED MAY 17, 1983.

MILWAUKEE MUTUAL INSURANCE COMPANY, PLAINTIFF-APPELLEE,

v.

JOSEPH WESSELS ET AL., DEFENDANTS — (JOHN BOVA, DEFENDANT-APPELLANT).



Appeal from the Circuit Court of De Kalb County; the Hon. Carl A. Swanson, Jr., Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Defendant John Bova (Bova) appeals from a judgment entered after a jury trial in De Kalb County. Judgment was entered for the plaintiff, Milwaukee Mutual Insurance Company, a corporation (Milwaukee Mutual), after a finding that it was not liable under an oral insurance binder given by Bova. Bova was employed by defendant, Clemons, Shepherd & Eckols, Inc. (CS&E.) On appeal Bova contends the verdict of the jury was contrary to the manifest weight of the evidence, that it should be set aside and judgment should be entered in his favor. In the alternative, he requests that the cause be remanded for a new trial because plaintiff brought out evidence concerning insurance in the presence of the jury.

Milwaukee Mutual had an agency agreement with CS&E whereby CS&E could solicit and sell insurance contracts as agent for Milwaukee Mutual. CS&E was an independent agent for a number of such companies. Defendant, Wessels Plumbing Sales & Service Company (Wessels Plumbing), was the party who sought insurance from CS&E's agent, Bova.

In January 1977 defendant Wessels wanted to change casualty, liability and workmen's compensation carriers and spoke to Robert Fay, a broker for health and life insurance. Fay suggested John Bova, vice-president and an employee of CS&E, as a possible agent. Wessels had casualty, liability and workmen's compensation insurance with the Country Companies and gave these policies to Fay. Fay then put Wessels in direct contact with Bova, who spoke to Wessels by phone about insurance coverage, received the Country Companies' files and opened his own file. Bova spoke with Wessels on subsequent occasions about the insurance. Finally Wessels suggested that Fay give $500 to Bova. Fay paid Bova on March 3, 1977, at which time Bova stated that he "bound coverage." Bova testified that he prepared all applications on Milwaukee Mutual forms and bound coverage on identical terms as those that Wessels had had with the Country Companies. However, Bova did not tell Fay or Wessels the name of the insurance company with which Bova intended to secure insurance.

On March 11, 1977, an employee of defendant Wessels Plumbing was involved in an auto accident in a vehicle Wessels had sought to insure. The employee and an individual in the vehicle he collided with were both killed. Bova called Milwaukee Mutual the next day and advised the company that a serious accident had occurred, that he had "bound coverage" for Wessels Plumbing on March 7, 1977, but had no policy number because no policy had been issued. The applications for insurance forms were sent to Milwaukee Mutual on March 14. They were received on March 16 and Milwaukee Mutual rejected the applications for insurance by letter dated March 19, 1977. Milwaukee Mutual filed an action for declaratory judgment, requesting a determination of its liability to insure Wessels' employee by way of an oral binder issued by Bova. Defendant's motion for summary judgment was granted. Subsequently, Milwaukee Mutual appealed to this court. On appeal we held that the trial court had improperly found there was no issue of material fact to be decided and the cause was reversed and remanded. This court stated that both parties should be given the opportunity to present evidence on the question of whether Bova and/or CS&E were acting as Milwaukee Mutual's agents in the transactions. The question was considered to be one of fact. This previous appeal was decided pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23) on September 19, 1979. 74 Ill. App.3d 1101.

After the cause was remanded, the parties went to trial. Milwaukee Mutual agreed to settle the claims with the three victims of the accident, or their estates. Milwaukee Mutual then amended its complaint and requested indemnification from Bova and CS&E. After trial, the jury returned a verdict for Milwaukee Mutual and against Bova and CS&E in the amount of $184,000.

Bova raises 11 contentions of error in this appeal. The first argument he makes is that Milwaukee Mutual failed to establish that an agency contract existed between him and and Milwaukee Mutual. Although Bova concedes that he was an employee of CS&E, he urges that he should not be bound by the CS&E agency agreement with Milwaukee Mutual because he did not assent to that agreement. Bova contends that because there was no evidence of assent, there was no agency relationship between Milwaukee Mutual and him. Therefore, he urges the findings of the jury were contrary to the manifest weight of the evidence. We disagree.

• 1, 2 There is no requirement that Bova expressly assent to a contract in order to be bound by it. An agency relationship need not be based on an express appointment and acceptance. (Lilly v. County of Cook (1978), 60 Ill. App.3d 573, 580, 377 N.E.2d 136.) Unless there is no dispute as to the parties' relationship, the existence and scope of an agency relationship are questions of fact, to be decided by the trier of fact. (St. Ann's Home for the Aged v. Daniels (1981), 95 Ill. App.3d 576, 579, 420 N.E.2d 478.) Agency is a consensual, fiduciary relationship whereby the principal has the right to control the conduct of the agent, and the agent has the power to effect the legal relations of the principal. (Slates v. International House of Pancakes, Inc. (1980), 90 Ill. App.3d 716, 724, 413 N.E.2d 457, 463.) The agency relationship differs from other fiduciary relationships in that it is the duty of the agent to respond to the desires of the principal. (Slates.) By referring to the situation occupied by the parties, and their acts, the existence and extent of an agency relationship can be shown, even if by circumstantial evidence. Kalman v. Bertacchi (1978), 57 Ill. App.3d 542, 548, 373 N.E.2d 550, 556.

In the case at bar there was no evidence to suggest anything other than that Bova was acting as agent for an insurance company. At trial the whole substance of Bova's argument was that he was authorized to, and had bound an insurance contract for Milwaukee Mutual. We believe the jury's decision was well within the manifest weight of the evidence in this regard.

• 3 The second contention raised on appeal concerns plaintiff having elicited testimony concerning Bova's errors and omissions insurance. Bova contends that this reference to his liability insurance was prejudicial and reversible error. The reference to insurance occurred in the testimony of Robert C. Fay, who testified he was a friend of Wessels and had recommended to Wessels that John Bova could possibly get him the best rate on insurance. Later, when Fay heard that one of Wessels' vehicles had been in a serious accident, Fay called Bova to find out if he had heard about the accident. On cross-examination Fay was asked if Bova mentioned "what would be the responsibility if it were not bound?" At this point Bova's attorney objected. During a side-bar, he urged that Fay was going to respond to the question by mentioning insurance. Bova's attorney would not agree to a compromise (i.e., giving a response to the question but leaving the word insurance out). The trial court ruled that the question and answer were proper because they constituted an admission against interest. The court overruled the objection. Fay then responded to the question by saying that Bova "indicated that if he was not bound, his errors and omissions insurance carrier would be — [objection and ruling deleted] the ones who would pick up the claim, or the liability in this case."

As defendant Bova points out, it is well settled that the injection of insurance into a case is reversible error. (Foster v. Lanciault (1979), 70 Ill. App.3d 962, 966, 388 N.E.2d 1140.) However, there are limitations to this principle; an example is where the subject arises as an admission of liability. Kitsch v. Goode (1977), 48 Ill. App.3d 260, 362 N.E.2d 446.

• 4 In an analogous situation, where a doctor charged with malpractice was alleged to have stated he may have been at fault and that he had an insurance policy of $100,000 for malpractice, the court found such a statement to be an admission. (Asher v. Stromberg (1966), 78 Ill. App.2d 267, 278, 223 N.E.2d 300.) While Bova's statement could be viewed as an admission, it would be by inference rather than because of what he stated. Bova merely indicated his own insurance would cover it if the binder he sought with Milwaukee Mutual did not. There is a substantial difference between admitting liability, as occurred in Asher, and simply admitting that you have insurance to cover a possible liability. Although this is a close situation, we do not believe the testimony elicited from Fay was an admission against interest. For these reasons, and because the reference to Bova's insurance was repeated by plaintiff's counsel in closing argument, we believe that allowing the reference to Bova's insurance was error.

• 5 Having found error, we next consider what prejudicial effect the reference to insurance may have had on the jury. The case at bar is different from most where reference to insurance coverage is argued. The whole of this case deals with insurance — agents, companies and contracts. Thus, it would likely come as no surprise to the jury that Bova himself had insurance. While reference to insurance during trial is generally improper, it is not per se reversible, as prejudice must be shown. (Joynt v. Barnes (1979), 71 Ill. App.3d 187, 198, 388 N.E.2d 1298, 1306.) We believe this is important in a case such as this, which is concerned solely with matters concerning insurance. The vast majority of cases where evidence of liability insurance was considered reversible error are personal injury cases.

Recently, some cases have discussed the diminishing relevance of the rule prohibiting the mention of insurance coverage. (American State Bank v. County of Woodford (1977), 55 Ill. App.3d 123, 129, 371 N.E.2d 232, appeal denied (1978), 71 Ill.2d 597.) It has been noted that the mention of insurance is not quite the bete noir that it was a generation ...


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